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cold fjord writes with news that the Supreme Court has expanded the ability of police officers to search a home without needing a warrant, quoting the LA Times: "Police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected, the Supreme Court ruled Tuesday ... The 6-3 ruling ... gives authorities more leeway to search homes without obtaining a warrant, even when there is no emergency. The majority ... said police need not take the time to get a magistrate's approval before entering a home in such cases. But dissenters ... warned that the decision would erode protections against warrantless home searches."
In this case, one person objected to the search and was arrested followed by the police returning and receiving the consent of the remaining occupant.

So the woman, who appeared as though she had been recently beaten, opened the door and allowed the cops in, she was not in her right mind? The "right mind" action for her was to tell the cops to get lost, thus allowing the gang material and guns of her gangster boyfriend to remain in the house?

Maybe sometimes the right thing to do is to actually talk to the cops. She allowed them in, they searched the place, found evidence to put the guy in prison for 14 years, and now a gangster is off the street and she doesn't have to worry about being abused by him anymore. What's wrong with that outcome?

You don't need to spend thousands on a lawyer. Nor do you have to take time off work to meet with said lawyer and go to court.Plus, you're guaranteed to get an equitable judge; one who isn't on a first-name-basis with representatives of the police department.

Children typically don't own property. So no, a child cannot grant consent to search. Any evidence gathered during that search would be inadmissable. The police have to have a reasonable belief that the person granting authority has common authority which usually means holds legal rights to the residence.

So police knock on a door and a burglar answers. He grants consent to a search. That's probably okay.So police knock on a door when a party is going on, some guy answers the door and grants consent to the s

What people are ignoring here is what actually constitutes a search and what the police are allowed to do in conducting the search. There should be a huge difference between a consent search and a warrant against consent search.

With regard to a consent search, the property own at all times should be allowed to limit and control the extent of the search and the manner in which it is conducted and that consent can be withdrawn at any time by the property owner. Also in regards to a consent search the police can not direct the property owner to behave in any particular matter, nor remain in any particular location nor can they restrain them. With regard to a consent search the property owner should be in complete control of the search at all times.

So the woman, who appeared as though she had been recently beaten, opened the door and allowed the cops in, she was not in her right mind? The "right mind" action for her was to tell the cops to get lost, thus allowing the gang material and guns of her gangster boyfriend to remain in the house?

Except that isn't really accurate now is it:

Fernandez was arrested in connection with the street robbery and taken away. An hour later, police returned and searched his apartment, this time with Rojas' consent. They found a shotgun and gang-related material.

So they removed him from the situation....so....there was no longer any emergency. They had left for an hour, while arresting him. There was no emergency situation at the time of the search, it was done after the fact. There was really no excuse for not getting a warrant for the search.

The only thing about this case that I find troubling is that it appears police can come back after you deny consent and ask again. If you're not physically present then your previous denial of consent no longer applies.

Three people in the house. Police ask to search. Person 1 says no, gets arrested for silly charge and carted off. Police return and ask again. Person 2 says no, gets arrested on silly charge and carted off. Police return and ask person three while stroking handcuffs. What to say, what to say?

Given the number of shouldn't ever happen incidents with police, anything is possible. One of my favorites is when police claim (with a strait face) that someone was arrested for resisting arrest (no other charge).

I've heard of this happening as well. It's why I believe that the most important election anyone can vote in is for Judges. Judges decide what police are allowed to do and that will affect your life more than any Federal and even most State policies.

"If you consent to a search what is the point of requiring a warrant anyway?"

I would ask: what right does the "occupant" have? In this case, she might have lived there, but what if there is an "occupant" who doesn't live there? Just somebody visiting. Or even a door-to-door salesman who was left alone in the home for 5 minutes while the owner was out back.

There is a right of ownership (and rights of occupancy, for that matter) in this country. Ignoring that leaves the door open to all kinds of abuses.

Further, the majority argument that warrants "are a burden" has never before

The police only have to believe that the person has apparent authority to permit the search. No actual proof of authority, or even that you live there is required. They only have to "believe" you have the authority to ok it.

No, this is about when someone didn't consent and was then arrested. The police came back and asked the remaining person who of course then consented (rather than be arrested). That should qualify as consent under duress if he had a good lawyer.

That is a false statement. The person who was arrested was arrested in connection with a street robbery, not for denying to the search. The person who allowed the search was not a suspect in any crime. The person who allowed the search was, however, the live-in girlfriend of the person arrested and was arguing with the person at the time the police arrived. She was pissed enough that when the police came back, she allowed the search even though she knew he didn't want it and she was able to allow the search because she lived at the residence.

The possiblity for abuse lies in the fact that whenever police are now faced with multiple residents and some are refusing a search and one or more are not, it's a very obvious tactic for the cops to simply arrest the ones refusing the search and then get permission to search from the remaining resident. All it takes is a wife, parents or child of 18 or more who live with you and will back down when threatened by cops.

This guy sounded like a scumbag. But the potential for abuse is there.

The person who was arrested was arrested in connection with a street robbery, not for denying to the search.

Everyone's guilty of something, and if the police can't pick something on the spot, you probably look like someone who was guilty of something. If the cops really want to arrest you, they'll find an excuse.

It seems that California law is a big part of why this is a grey area. They like their income taxes out there, so they have pretty loose rules about who is a resident and who isn't, surrounding the concept of 'domiciling'. Basically the moment you 'demonstrate by your actions' that you believe this is your home, it is.

Seems like they would have squatting issues with so little a barrier, but that's the law that set up this situation.

So it doesn't seem to matter who is on the lease, just who believed that t

You have to live in a residence for two weeks before California considers you a resident of that address. This is why most leases in California have a clause against letting guests stay for more than two weeks.

It does matter, because it used to be that if police asked, and got denied, they had to go get a warrant. Now, they can play the mommy/daddy game.

Ask one person, if they say no, go and ask the other. No need to be truthfull or anything. Police are allowed to lie, so all they have to do is go manufacture the consent of someone else, who may even just be a disgruntled roomate.

I certainly hope such "permission" would not extend to individual areas, like personal bedrooms. As a landord who rented rooms to people. Common areas are one thing, but, personal space is personal space and something people often pay for.

Frankly, at this point, I don't think police can be trusted to ever have a search without a warrant. We should require more warrants from them not less. This is the wrong direction.

""You don't have any right to come in here. I know my rights," Fernandez shouted from inside the apartment, according to court records.Fernandez was arrested in connection with the street robbery and taken away. An hour later, police returned and searched his apartment, this time with Rojas' consent."

Occupant A doesn't give consent and then gets arrested. So of course Occupant B gives consent... he just watched them arrest the other guy.

Personally, I'm more concerned with how they define "occupant". Is it anybody that happens to be in the house at that time? Do children count?

Occupant A doesn't give consent and then gets arrested. So of course Occupant B gives consent... he just watched them arrest the other guy.

Occupant A wasn't arrested for refusing consent. He was arrested for committing robbery. Occupant B gave consent, very likely because Occupant A beat the crap out of Occupant B. Instant karma!

Personally, I'm more concerned with how they define "occupant". Is it anybody that happens to be in the house at that time? Do children count?

If you were actually concerned, you could, you know, look it up. In order to consent to search, the Supreme Court has ruled that a person must have "common authority" over the area to be searched. Common authority has been defined by the Supreme Court to mean a legal adult who has mutual use of the property and who

A landlord can't give consent for the police to search a space that you have rented for your exclusive use. They can enter without your consent in case of an emergency (fire, gas leak, water leak, etc), but a simple request by the police to search is not an emergency. Some [nolo.com] easy [policemag.com] to [searchandseizure.org] read [blogspot.com] sources [lawcollective.org].

Do note however, as a private actor, a landlord entering your unit legally (or even illegally, but then they would risk being subject to civil and/or criminal consequences for the entry), can observe that you've got a meth lab inside, go to the police and tell them this, and the police can probably easily get a warrant to search because they now have cause. Actually, even if the landlord took (i.e., stole) something of yours from your apartment (such as a gun used in a murder), they can turn it over to the police and it can be used as evidence against you (again, they would risk being subject to civil and/or criminal consequences for the theft). However, these actions on your landlord's part can not be done in coordination with the police. The Fourth Amendment only restricts law enforcement, not private actors.

Actually, he could have protected himself with, "B*TCH! Get out of my house!" If she isn't on the lease, then she is staying as a guest. If the permission for a guest to stay is rescinded and she stays, she is now a trespasser. Trespassers cannot give consent to a search.

It seems to me that this could be interpreted to allow the following scenario: A police informant runs out of gas in front of your house. You let him in to use your phone so he can get a ride. The police then mysteriously show up wanting in. You tell them no but from behind you the informant yells "come right in."

Is that legal? Who knows.. now someone has to take it to court.

What's with this supreme court no-a-days? They seem to think that it's their job just to rewrite the law whenever they choose. What upsets me is that this isn't some new issue in which technology has changed the nature of society. This is an old issue with an established procedure. This scenario would have been just as relevant in the 1950s, but the court at the time would have never ruled this way.

It's not legal consent for a search. Georgia v. Rodriguez requires consent of all parties and that case hasn't been contradicted by this case.

What this case does is establish that the police can just keep coming back and asking for consent and as soon as you, the denier of consent, are absent all your previous denies of consent no longer matter and as long as all remaining occupants grant consent the search is permitted.

It seems to me that this could be interpreted to allow the following scenario: A police informant runs out of gas in front of your house. You let him in to use your phone so he can get a ride. The police then mysteriously show up wanting in. You tell them no but from behind you the informant yells "come right in."

That's not what's going on in this case though.

The/. summary is wrong.

Using your case as an example, you kindly let the informant in. Later, police come to your door. The officer asks "may we search your place?" You say "no". Doesn't matter what the informant says. Your "no" still rules, as long as you are still there. That's still going to be the case.

US v. Matlock [bloomberglaw.com], 1974 allowed the search as long as someone who could consent did consent. "Government must show, inter alia, not only that it reasonably appeared to the officers that the person had authority to consent, but also that the person had actual authority to permit the search..."

Georgia v. Randolph, 2006 [bloomberglaw.com], changed it so that if any occupant objected, then the search could not take place.

I think that Illinois_v._Rodriguez allows the evidence to be admitted if the police had a reasonable belief that the person consenting actually has authority over the property even if, later, that belief is shown to be incorrect.

I also don't believe there is any requirement that the person giving consent be on the lease/title -- for example, if someone lives there, they can consent to a police search of any area they have legal access to (such as any common area they are allowed to use/frequent).

If I object to the search then they arrest me and take me away. Then come back and ask my wife if they can search the house... If she objects do they arrest her too or consent.If nobody is then in the house they can easily get a warrant because, hey, both occupants were arrested for obstructing justice so they must be hiding something and nobody is there ANYWAY so it's probably a "good idea"(tm) for the judge to issue a warrant to make sure everythings, y'know, SAFE for neighborhood children.

I have. Cop asked if he could search my truck during a traffic stop. I was arrested so the truck would be "unattended" thus could be towed and he could "inventory" it.

"I would prefer you didn't.""Why?""Strictly on principle. I don't agree with that and not a fan of people digging through my stuff.""Sir, I'm going to have you step out of the car and place your hands behind you back..."

Oh yeah? Just ask this guy. [youtube.com] He was absolutely arrested for not consenting to a search by lying cops. And as shown in the video, the prosecutor states that if he wasn't lucky to have had a clear recording they would have no qualms about and would have gotten away with lying to convict him. The linked video is full of all sorts of blatant gestapo corruption on the part of the cops AND the court (at one point the judge called the sheriff to arrest him for not letting the prosecutor see exculpatory evidence, when sheriff arrived he simply told the judge he couldn't arrest him for that).

Walter Fernandez, the person who said refused to allow the search, was arrested in connection with the street robbery that the police were investigating. The sounds of an argument led the police to the apartment. Roxanne Rojas, Fernandez's girlfriend answered the door and Fernandez told the police they couldn't search the place. About an hour after Fernandez was arrested, the police returned to the apartment and asked the other person who lived there, Fernandez's girlfriend, if they could search the apartment and she said yes.She could have hidden or moved anything incriminating between the time Fernandez was arrested and the time the police returned. She could have said no and that would have been the end of it because she wasn't a suspect in any crime.

Really, the take away of this is "Don't piss off your girlfriend if you just robbed someone and don't want her to let the police search the apartment."

If you object to a warrantless search in the first place, they can't take you away for obstruction (disclaimer: IANAL), any more than they can use your refusal to consent to a search of your car as a reasonable cause for searching your car. If they did, any evidence they discovered (and then any evidence they later discovered thanks to the clues they picked up from the search, thanks to the fruit of the poisonous tree doctrine [wikipedia.org]) would be inadmissible as a result of being procured from an illegal search, and

You libertarians make this seem like a really big deal, but there's a simple solution: if you want to be absolutely sure the police can't enter your home when they come knocking, just kill everyone else inside before answering the door.

I'm not sure the idea of "protecting provisions enumerated in the bill of rights" qualifies as a "libertarian-whateveryouguyscalltherestofus" divide. I'm pretty sure you'd get like 90% of Americans to agree the bill of rights is a great idea if you asked them. The problem here is the hyper-conservative majority of the supreme court, for whom legal protection is an idea that only applies to corporations. If you read the majority opinion, it's basically "who cares if someone objects?" And the dissenting o

"Authoritarian," "statist" or "totalitarian" might be the word you're looking for. (Not "socialist," or "liberal" though, as those are not mutually exclusive with libertarian -- see the Green Party as an example.)

I wonder if this means that a visiting relative or friend can allow the police to search your place without the owners or listed tenant consent? I certainly think owners listed on a deed or listed tenants on a lease/rental agreement would be the only ones authorized to do that, not just somebody living there. I think this ruling means that if one person says no consent that all people living there need to follow suit. This is definitely a bad ruling though because how was the search related to the crime

Cops don't have time for determining property ownership. If a person looks like a resident of a dwelling, then they are a resident of the dwelling.

Arguably, the warrant is all about the cops making time to determine whether or not they should be entering without permission.... I think this particular ruling is going to get nuanced, several times, before settling down as well understood case law.

certainly think owners listed on a deed or listed tenants on a lease/rental agreement would be the only ones authorized to do that, not just somebody living there.

No. The owner of a lease/rental does not have the authority to authorize a search if it is currently leased and the owner is not a tenant unless specifically stated in the lease AND not barred by law. A contract can't override state law. By definition, "just somebody living there" would be a tenant, even if temporary or short term, such as a visiting relative or friend staying on your couch. The "somebody" can generally only authorize a searc

As an American with some familiarity with history, it doesn't surprise me at all. Rulers and would-be rulers have always held the people in contempt, and you can see plenty of examples of it all around you there in Europe under the Fourth Reich.

The first occupant was not arrested for "Obstruction" but in connection to a robber that had just occurred. Changing what actually occurred to match your views is not valid. If your scenario actually occurred the case would be thrown out based on false arrest as refusal of a search is not obstruction.

So, if they had enough probably cause to arrest him, shouldn't they have had enough probably cause for a warrant? Perhaps either the cops were too lazy to do their jobs and get a search warrant, or they arrested him knowing they didn't really have enough probable cause, figuring they'd get it once they searched the house.

What's perhaps worse is that the cops knew they needed to get a warrant once the guy refused, because this all happened before the court ruling. So to summarize: they were too lazy to get a warrant in the first place and searched anyway when they knew it was illegal to do so at that time.

The point is they can arrest occupants for ANY kind of suspicious activity, then turn around and come back for another consent attempt. What the first person was arrested for is irrelevant. As the Brad Cooper videos show, you shouldn't even open the door at all since a cop can claim to see or smell something that gives him reasonable suspicion.

This effectively removes the fourth amendment prohibition against unreasonable search and seizure: Just keep arresting and hauling away occupants until one of the remaining occupants gets too scared to invoke his Constitutional right.

Fernandez objected to a search, Fernandez was arrested, and Rojas consented to a search an hour later.

At what point does Fernandez's objection to a search become invalid? If the cops came back one year later for a different issue, and only Rojas was home, I think most people would agree that Fernandez's objection would no longer be valid. How do you define when the objection is no longer valid?

I think the Supreme Court got this case wrong because the police were trying to conduct the same search, but how do you define that legally?

Yes, so that makes you a traitor, by your own definition. You are promoting the eroding and denial of the freedom of that woman, who had just been beaten by this guy, to allow the cops to search the house in which SHE ALSO WAS A RESIDENT.

"Denying someone in Rojas' position the right to allow the police to enter her home would also show disrespect for her independence," Alito wrote for the court.

That line carried a lot of weight with me too. She was a resident of the home, and had the right to admit or deny entry to the police, even over the other resident's objection. I guess the moral of the story is make sure the people you live with are equally complicit in your crimes.

The Supreme Court by definition (according to Marbury v Madison and the principle of Judicial Review) cannot violate the constitution with one of their rulings, either-- however they decide is considered to be the correct interpretation of the Constitution.

Not only that, I believe there is a principle [wikipedia.org] that makes judges immune to prosecution for a ruling that they give.

Not exactly. If one has told one's housekeeper and/or baby sitter they are not to allow anyone in the house, they do not have authority to authorize a search. They also don't have the authority to allow a search if they are not present and no one is at the home or if they are present and an actual resident is at the home. Even if one has not given explicit instructions to domestic help, it is a gray area as to whether one's help can give consent to a search.

Not if you are married. It is no longer just YOUR home and YOUR stuff. Now it is, as we would say in the South, Y'ALL home and Y'ALL stuff. Your wife would have just as much of a right to consent to the search.

No the new law seems to apply to a GF or any resident in the home, which I'm thinking goes too far.

Screw that. The cops don't need to find the people who are actually on the lease. They don't need to find who paid the last rent check. That is not their job. All they have to do, and SHOULD have to do, is get approval from an occupant to enter the place to search. If the woman, who had just been beaten by her boyfriend, wanted to say no, she could have, and that would have been that.

Or maybe she thought, "Hey, NOW'S a perfect opportunity to get rid of that scumbag once and for all. Come on in, Copper

The cops don't need to find the people who are actually on the lease. They don't need to find who paid the last rent check.

You're right, they don't—as long as they have a warrant. If they're going to claim consent, however, then it needs to be from someone with the right to give consent, which means the actual, verified owner of the property, or someone to whom the owner has consciously delegated that right.

Otherwise they wouldn't need consent at all. Anyone could give it for any search, meaning that the police could just give themselves consent.

If you live with someone, that person also lives there and it is also his home. That person can give permission to search the domicile. That you said no is irrelevant if you are not there to object because you were arrested for a crime. Remember, he was not arrested for saying no to the search, he was arrested for robbery.

You do not have final say if the place you live can be searched if you are not the only person who lives there.

I do see a slippery slope here, but generally agree with the decision. The police shouldn't have to verify that the person answering the door is a resident or owner. The fact that they open the door should be enough permission.

The police shouldn't have to verify that the person answering the door is a resident or owner.

They should if they're claiming to have consent to search the place. They can't get consent from anyone else; it would just as much sense for a complete stranger such as myself to give consent for them to search your home. If they can't get consent from someone confirmed to have the right to give it then they are welcome to come back later with a warrant.

What should concern you here is that the police simply removed the occupant that objected to the search and then obtained consent from the remaining occupant (who probably saw what happened to contestant #1 and didn't care to share the same fate).

That was my question as well. The premise behind searching with consent is that the person giving the consent has the right to allow anyone to perform a search—the police aren't using any special privileges to gain access. It makes sense that they would only need permission from one person, but that person would need to be in a position to give said permission legally. That may not be true for everyone in the house, or even everyone who lives there permanently. A minor, for example, should not be able